Dudley Metropolitan Borough Council (202008452)

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REPORT

COMPLAINT 202008452

Dudley Metropolitan Borough Council

10 January 2022

 

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. This complaint is about:

a.     The landlord’s response to ongoing damp and mould issues at the property;

b.     The landlord’s handling of the residents’ decant to temporary accommodation;

c.      The landlord’s handling of the residents’ request for adaptations to property;

d.     The landlord’s handling of the residents’ claim for damaged property and its complaint handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.c. The landlord’s handling of the residents’ request for adaptations to the property.
  3. The residents asked for adaptations to be made to the property’s kitchen on health grounds. They said the landlord should complete these works while they were decanted, to facilitate required damp and mould works, to avoid them experiencing additional disruption later. The timeline indicates the landlord began assessing this request around October 2020, but it is unclear if the residents have ever been given a final outcome. The residents have told the Ombudsman they have been inconvenienced by the landlord’s handling of their request.
  4. Paragraph 39(a) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “are made prior to having exhausted a member’s complaints procedure”. Since this issue has not been addressed formally by the landlord, as part of its complaint response, it is outside of the Ombudsman’s jurisdiction to consider. If the residents want to pursue the matter, they will need to raise a separate formal complaint with the landlord so it can investigate and respond accordingly. The Ombudsman can consider this complaint on completion of the landlord’s complaints procedure.

Background and summary of events

Background

  1. The residents are secure tenants, and the tenancy began on 27 July 2017. The property is a semi-detached bungalow with one bedroom.
  2. The landlord’s relevant tenancy conditions document confirms the landlord must complete repairs in a reasonable timeframe. This depends on how urgent the repair is.
  3. Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Damp and mould are potential hazards that can fall within the scope of HHSRS.
  4. Local authorities do have powers to act under HHSRS, but enforcement is seen as a last resort. Typically, landlords and local authorities work together, and a programme of improvement works is usually the starting point. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified. In this case the landlord is the residents’ local authority.
  5. The landlord provided a copy of its repairs procedure document. The document shows it has an obligation to inspect reported damp issues within 15 working days. It defines connected repair works as “programmed repairs”, which do not have a defined timescale due to the extent of expected remedial works.
  6. The landlord operates a two stage complaints procedure. Its procedure document shows it will respond to complaints within 20 working days at both stages of the process. For complex cases, where additional time is needed, complainants will be kept updated on the landlord’s progress.

Summary of events

  1. The landlord’s repairs history documents show that between 20 November 2017 and 18 January 2019 five works orders were raised to address damp and mould issues at the property. The documents confirm the works were extensive and involved multiple rooms at the property along with the exterior.
  2. The residents contacted the landlord on 21 August 2020 to report mould. The contact note shows they had been advised the problem could not be immediately inspected and they were concerned about its impact on their health.
  3. The landlord’s internal records confirm the residents raised a formal complaint on 28 August 2020. They show black mould had formed on the living room chimney breast and the residents were unhappy the earliest available inspection date was in mid-September 2020 due to the pandemic. Further, they questioned this information on the basis one of them had respiratory problems, amongst other conditions, and they understood routine repair timescales were unaffected.
  4. Internal correspondence from 2 September 2020 shows the landlord inspected the property that day. This was 12 days after the residents’ initial report. The inspection identified the presence of rising damp on external walls in the living room and bedroom, along with a condensation issue in the kitchen. A range of remedial works was recommended including replastering, damp proofing, repointing, installation of drainage and treatment works. It confirms the residents were told a temporary decant to alternative accommodation would be needed given the potential for replastering works to impact on a respiratory condition. Further, they were advised the process of finding suitable alternative accommodation was likely to take some time. It also shows the landlord started the decant process the same day.
  5. Internal correspondence from 4 September 2020 shows the landlord had spoken to the residents that day. During the conversation it identified they had several housing needs including a walk-in shower, an access ramp and a secure place to store a mobility scooter.
  6. On 10 September 2020 the residents raised a claim against the landlord for personal items damaged by damp and black mould. They provided estimated values for a list of items that included furniture and clothing. Their letter asked the landlord to also consider the impact of the situation on their physical and mental health.
  7. Internal correspondence from 11 September 2020 shows the residents were chasing an update on the decant since they wanted works to be completed as soon as possible. However, it shows the landlord had nothing immediately available and it was aware the residents had several specific suitability requirements based on their medical needs.
  8. The landlord’s own timeline, from 23 November 2020, shows it identified a decant property on 16 September 2020, which was offered to the residents around the same time. Both parties agree this bungalow was declined on suitability grounds based on the residents’ concerns around accessibility and the lack of storage for a mobility scooter.
  9. The timeline confirms an alternative decant property was offered and declined around 23 September 2020. The landlord’s later correspondence attributed the residents’ decision to their reluctance to live in a flat. However, the residents later told the Ombudsman they had similar concerns around storage of the mobility scooter, which had to meet certain requirements specified by its insurance policy.
  10. The landlord issued a stage one complaint response on 22 September 2020. The main points were:

a.     Following an inspection on 2 September 2020 works orders had been raised for various works at the property.

b.     Given the level of disruption involved a decision had been taken to decant the residents until these works were complete.

c.      A suitable decant property would be found to allow works to begin. Once found, the landlord would contact the residents to organise their move.

  1. The landlord acknowledged the residents’ damage claim on 30 September 2020 and confirmed it would be investigated. Its internal correspondence shows the landlord was aware of rising damp at the property from 2017.
  2. The landlord’s timeline shows that, following the two declined offers, the residents suggested three empty properties they felt were potentially suitable based on their own research. Although the Ombudsman hasn’t seen information confirming the details or timing of the discussions, the landlord’s timeline shows they were offered one of their preferred properties on 1 October 2020. This was around one month after the decant process had begun.
  3. Internal correspondence from 5 October 2020 shows the residents had requested alterations to their own property’s kitchen including the widening of two doorways and removal of cupboards. It said the alterations had been requested because one of the residents’ mobility was deteriorating.
  4. Further internal correspondence from 13 October 2020 shows the residents had contacted the landlord to request escalation of their complaint to the second stage of its process. The Ombudsman has not seen a copy of the resident’s escalation request. It also confirmed a suitable decant property had been identified, but the landlord was waiting for the keys to be returned by the previous occupant.
  5. Internal correspondence between 16 and 21 October 2020 shows the landlord’s Occupational Therapy Department needed to assess the residents’ request for kitchen alterations. However, it confirmed it may be possible to arrange for any approved alterations to coincide with the residents’ decant. It was felt that, since they were requested to facilitate wheelchair access to the kitchen, alterations of this type were unlikely to be suitable for the property due to the limited space available for a wheelchair to manoeuvre in the kitchen. It shows the Occupational Therapy Department highlighted that a permanent move may be necessary to resolve the problem.
  6. The landlord’s internal correspondence confirms the keys to the proposed decant property were returned around 27 October 2020. Its timeline shows it then took around one week for the landlord to prepare the property for habitation.
  7. The residents contacted the Ombudsman on 9 November 2020 for assistance with their complaint.
  8. Following the preparation, the landlord visited the preferred decant property with the residents on 10 November 2020 to assess its suitability for their needs. Internal correspondence from the following day shows several issues were identified during the visit which presented a problem for the residents. These included the need for kitchen adjustments to ensure the residents could fit their electric cooker. Further, a power supply to the outhouse would need to be installed for the residents’ appliances. The correspondence shows the landlord agreed to address these issues to overcome the major obstacles to the move, which was expected to last between four and six weeks.
  9. The landlord visited the residents at the property on 16 November 2020. Internal correspondence following the visit suggests the scope of required repair works was discussed after the residents requested additional damp prevention works in the kitchen. This request was based on a previous conversation the residents had with the landlord’s engineer who repaired a leak at the property. It also shows their request for kitchen alterations had been declined by the landlord’s Occupational Therapy Department. It suggests the residents requested a following up meeting and asked for more of the landlord’s representatives to attend to help resolve the situation.
  10. The landlord’s decision notes, from around 17 November 2020, provide additional background information on the resident’s damage claim. They show the landlord had settled a previous claim from the residents for a carpet that was damaged during prior damp repair works. They also show the landlord was aware the rising damp problem predated the start of their tenancy.
  11. On 19 November 2020 the Ombudsman contacted the landlord in respect of the complaint. Its internal correspondence from the following day shows this contact prompted the landlord to escalate the complaint to the second stage of its complaints process.
  12. The landlord’s timeline confirms a follow up meeting took place at the property on 20 November 2020. It shows the residents were highly distressed by the situation and ultimately decided to put the damp works on hold, pending an outcome to their requested kitchen alterations. This was on the basis they wanted all works at the property to be completed at the same time. However, they agreed to allow the mould in the living room to be painted in the meantime. It shows the landlord advised them the decant property could not be held indefinitely. It therefore agreed to provide the residents a few days for reflection before contacting them again to confirm their final decision.
  13. On 1 December 2020 the landlord offered the residents £1500 in full and final settlement of their damage claim. The residents signed the acceptance form to accept this payment on 7 December 2020.
  14. The landlord issued its stage two complaint response on 16 December 2020. It addressed the landlord’s response to the damp and mould, along with its handling of the both the decant and the resident’s damage claim. The main points were:

a.     Based on the discussion on 4 September 2020, the landlord was aware of the residents’ specific requirements concerning suitable alternative accommodation.

b.     A further conversation was held on 11 September 2020 but a property the residents were interested in had already been allocated to another applicant.

c.      The landlord identified a decant property on 16 September 2020, but the residents declined due to concerns around its accessibility and location.

d.     A further decant property was offered on 23 September 2020 but this was refused because the residents did not want a flat.

e.     The residents identified three properties and were subsequently offered one of them. The landlord agreed to undertake several minor repairs to increase its suitability.

f.        The residents had asked for adaptations to the property to be carried out at the same time as the repairs. The landlord’s Occupational Therapists were currently assessing this request.

g.     The residents confirmed on both 20 and 24 November 2020 that they did not wish to move to the decant property pending an assessment for adaptations. However, they had agreed to treatment works which the landlord had arranged.

h.     The landlord had no additional comments to make in respect of the residents’ damage claim given they had previously accepted its offer of payment.

i.        The landlord agreed to decorate three rooms following completion of its mould and damp works at the property.

  1. On 4 May 2021 the residents told the Ombudsman they were still waiting for a decision from the landlord’s Occupational Therapy Department. They also said the landlord had requested access to complete pointing works to the exterior of the property. However, the residents had declined the works on the basis similar repairs had been completed previously and failed to resolve the issue.
  2. Internal correspondence from 18 June 2021 shows the landlord’s Occupational Therapy Department maintained the property was unsuitable for the residents’ requested adaptations. However, the landlord argued this point internally on the basis it was aware of a similar property which had been adapted for the same purpose.
  3. During a phone call on 15 December 2021, the residents confirmed the damp and mould problem was ongoing. They explained their preferred outcome, for the landlord to arrange a suitable decant allowing the necessary repairs to be completed as soon as possible, was unchanged. However, they felt the landlord had accused them of unreasonably declining decant properties when some of the offers made had been inappropriate. They felt the situation could have been avoided if they been given details of these properties in advance.
  4. While they had accepted the landlord’s payment to settle their damage claim, they had recently installed laminate flooring, which they now understood would need to be removed to facilitate repair works. The residents felt the landlord had agreed to reimburse them for this flooring but had changed its position. The residents also said they had been inconvenienced during their dealings with the landlord’s Occupational Therapy department.

Assessment and findings

  1. It is recognised that the residents have been impacted by ongoing damp and mould for a considerable length of time and the situation has been distressing. The significance of this impact can be estimated by reference to their successful damage claim against the landlord. A broad range of remedial works have been completed since 2017, and the information seen suggests the residents have experienced disruption because of the situation.

The landlord’s response to ongoing mould and damp at the property

  1. The landlord’s repair history confirms repair works to directly address damp and mould were not required from April 2019 until the residents’ report on 21 August 2020. This was following completion of works that commenced in January 2019. This suggests the previous repairs had temporarily resolved the issue during this period.
  2. The landlord has not disputed the mould is the result of a structural damp issue. Nor that it is obliged to rectify the problem within a reasonable timeframe in accordance with the tenancy agreement and its obligations under section 11 of the Landlord and Tenant Act 1985.
  3. The timeline confirms the property was inspected within 15 days of the residents’ report of black mould in line with the landlord’s repairs procedure. As a result of the inspection, a further range of remedial works was identified to address the problem, this was in accordance with the landlord’s obligations under HHSRS. It is noted that the decant was recommended on health grounds, but this was not due to the presence of mould. Rather, the evidence shows the landlord considered the impact of the remedial plastering works on the residents’ medical conditions and took the decision on that basis. It is likely the level of expected disruption involved also influenced this decision.
  4. Given the above, there is no evidence to show the landlord has acted inappropriately by failing to take urgent action on identified health and safety grounds, or by allowing the residents to remain in the property while the situation is ongoing. Having considered the overall timeline, the information seen shows the landlord’s previous works were undertaken in line with the requirements of HHSRS. This is because a range of remedial works were identified and completed between 2017 and 2019, which confirms the situation was being monitored by the landlord.
  5. More recent events in the timeline suggest the landlord continues to conduct appropriate ongoing monitoring of the situation. This is because the residents’ correspondence from May 2021 confirms it identified that completing the recommended pointing works may mitigate the damp problem, although its request to proceed with the repair was declined. It is noted no information has been seen to show the landlord failed to complete the painting works which it confirmed were arranged in its stage two complaint response. This suggests the landlord revisited the property in a professional capacity to specifically address the issue of mould. Again, this suggests the landlord is appropriately engaged with the situation.
  6. It is acknowledged the programme of remedial works identified on 2 September 2020 is incomplete, more than 16 months later. Though the landlord’s repairs procedure does not specify a timescale for repairs of this type, a delay of this length could be considered unreasonable under some circumstances. However, it is recognised that the delay was caused by the residents’ reasonable desire to minimise the disruption they experienced by coordinating works at the property with their requested alterations. Since the decision not to accept the temporary move, and to put the remedial works on hold, was ultimately made according to the residents’ preference, this assessment found no maladministration on the part of the landlord in respect of its response to ongoing damp and mould issues at the property.

The landlord’s handling of the residents’ decant to temporary accommodation

  1. In respect of the landlord’s handling of the temporary decant, the timeline shows the residents were notified at the outset that the process of finding an alternative property may take time. It also shows the residents were anxious to progress matters promptly given they chased the landlord for an update within two weeks of the process starting. Nevertheless, a similar alternative to their current property, which the residents identified, was made available to them around ten weeks later. The timeline confirms that around four weeks of this waiting time was due to circumstances beyond the landlord’s control. As a result, it was reasonable for the landlord to source alternative accommodation in this timescale given the circumstances.
  2. While it is accepted that two prior offers of temporary accommodation were declined, and the residents have said these offers were unsuitable for their needs, it is recognised they had a number of specific requirements based on their medical conditions. It is therefore reasonable to conclude this made the search for a suitable property more difficult for the landlord, which, according to the above timeline, was seeking to balance the resident’s preference for speed with their specific accommodation requirements. That the landlord ultimately secured one of the resident’s preferred decant properties shows it was working with them to find a solution in the interests of all parties. This represents appropriate behaviour on the part of the landlord.
  3. The landlord’s internal correspondence confirms it was willing to undertake works to increase the suitability of the residents’ preferred accommodation. It also suggests that installing a new power supply, to the outbuilding, fell outside of its usual process. That it was willing to act outside of its usual procedure demonstrates the landlord gave appropriate consideration to the residents’ individual circumstances during the decant process. Given the above, this assessment found the landlord acted appropriately in respect of its handling of the resident’s decant to temporary accommodation.

The landlord’s handling of the residents’ damage claim and complaint handling

  1. In respect of the landlord’s handling of the resident’s damage claim, it is noted that laminate flooring was not specified on their list of damaged items which comprised the claim. Since no other evidence has been seen in relation to this matter, it is unclear whether the landlord has formally addressed the issue. On that basis, the residents should ask the landlord to confirm its position on the flooring and they can raise a formal complaint if they are dissatisfied with the outcome.
  2. In relation to the landlord’s handling of the completed claim, it was appropriate for the landlord to pass the claim details to its Insurance Department when it was presented with the residents’ list of damaged items. The evidence shows it then completed an appropriate investigation and reached a decision to accept the claim based on a reasonable rationale. The timeline confirms that, while the complaint and the claim were raised separately, the landlord did not use the claim as a barrier to the residents accessing its complaints procedure. When an offer was made in respect of the claim, the landlord’s correspondence confirmed the residents could provide additional information if they wished to dispute its valuation. The above represents appropriate action on the part of the landlord in respect of its handling of the residents’ claim.
  3. In respect of the landlord’s complaint handling, based on the information seen, it was reasonable for the landlord to refer to the resident’s acceptance of the claim outcome in its stage two response. This is because the landlord’s Insurance Department, rather than its Complaints Team, had completed the investigation into the matter. It is therefore reasonable to conclude that any disagreement over the claim outcome should have been referred to the investigating department in the first instance, with the option of a complaint available if the residents were dissatisfied with its response.
  4. The landlord’s internal correspondence confirms the residents had asked for their complaint to be escalated in October 2020. However, it took contact from the Ombudsman the following month for the landlord to begin investigating the complaint at stage two of its process. A comparison with the timeline shows the impact of the landlord’s failure to comply with the initial escalation request had a limited impact on the residents’ situation given it was waiting for keys to be returned at this point. Nevertheless, this represents service failure on the part of the landlord in respect of its complaints handling.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the landlord’s response to ongoing damp and mould at the property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the landlord’s handling of the residents’ decant to temporary accommodation.
  3. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure on the part of the landlord in respect of its complaint handling.

Reasons

  1. The evidence seen shows the landlord has made, and continues to make, reasonable attempts to comply with its repairing obligations. This is because it identified a programme of remedial works to address the issue of ongoing damp and mould. While the identified programme is incomplete after around 14 months, the residents decided not to accept a temporary move necessary to facilitate the required works. From the information seen, the landlord is conducting ongoing monitoring of the situation appropriately.
  2. The landlord ultimately secured a decant property which the residents had suggested as meeting their requirements. This was done in reasonable time despite a delay of around one month that was beyond the landlord’s control. The landlord worked with the residents during the decant process and showed willingness to make adjustments to the decant property, which were outside its process. These were agreed to increase its suitability for the residents.
  3. The timeline confirms the landlord failed to comply with the residents’ request to escalate their complaint prompting them to seek assistance from the Ombudsman. This resulted in a delay of around one month before the landlord’s final response was issued.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to pay the residents £50 compensation within four weeks to address the delay and inconvenience caused by its failure to escalate their complaint.

Recommendations

  1. The landlord to contact the residents and provide an update on the current situation concerning their request for kitchen alterations. If the matter is suitably resolved, then the landlord should seek to progress the decant in line with their preference.
  2. The landlord to ensure it actions escalation requests promptly to ensure they are not forgotten.
  3. The landlord should confirm its intentions regarding these recommendations to this service within four weeks of the date of this report.